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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-07-SE-006
In the Matter of )
NAL/Acct. No. 200732100045
Sprint Nextel Corporation )
FRN # 0014139349
)
)
Notice of apparent Liability for forfeiture
Adopted: August 29, 2007 Released: August 30, 2007
By the Commission: Chairman Martin issuing a statement.
I. introduction
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
Sprint Nextel Corporation ("Sprint Nextel") apparently liable for a
forfeiture in the amount of one million three hundred twenty five
thousand dollars ($1,325,000) for the willful and repeated violation
of Section 20.18(g)(1)(v) of the Commission's Rules ("Rules"). The
apparent violation involves Sprint Nextel's failure to comply with the
Commission's requirement that wireless carriers employing a
handset-based Enhanced 911 ("E911") Phase II location technology must
achieve 95% penetration, among their subscribers, of location-capable
handsets by December 31, 2005.
II. Background
2. The Commission's wireless E911 rules ensure that the important public
safety needs of wireless callers requiring emergency assistance are
met as quickly as possible. Under Phase II of the E911 rules, wireless
licensees are required to provide Public Safety Answering Points
("PSAPs") with Automatic Location Identification ("ALI") information
for 911 calls. Licensees can provide ALI information by deploying
location information technology in their networks (a network-based
solution), or Global Positioning System ("GPS") or other location
technology in subscribers' handsets (a handset-based solution). The
Commission's rules also establish phased-in schedules for carriers to
deploy any necessary network components and begin providing Phase II
service. However, before a wireless licensee's obligation to provide
E911 service is triggered, a PSAP must make a valid request for E911
service, i.e., the PSAP must be capable of receiving and utilizing the
data elements associated with the service and must have a mechanism in
place for recovering its costs.
3. In addition to deploying the network facilities necessary to deliver
location information, wireless licensees that elect to employ a
handset-based solution must meet the handset deployment benchmarks set
forth in Section 20.18(g)(1) of the Commission's Rules, independent of
any PSAP request for Phase II service. After ensuring that 100% of all
new digital handsets activated are location-capable, licensees were
required to achieve 95% penetration, among their subscribers, of
location-capable handsets no later than December 31, 2005.
4. On January 5, 2007, the Commission issued orders denying requests for
waiver filed by Sprint Nextel Corporation and Nextel Partners, Inc. of
the December 31, 2005 handset penetration deadline (collectively,
"Waiver Orders"). In these Waiver Orders, the Commission found that
Sprint Nextel and Nextel Partners failed to meet the Commission's
standards for waiver of the 95% handset penetration requirement
because their efforts to encourage subscribers to upgrade
non-compliant handsets were insufficient and ineffective and their
filings lacked a clear path to full compliance with the handset
penetration requirement. The Commission also found that Sprint Nextel
and Nextel Partners' conceded failures to meet 95% handset penetration
by the December 31, 2005 deadline should be addressed through the
enforcement process and referred the matter of both carriers'
non-compliance with Section 20.18(g)(1)(v) of the Rules to the
Enforcement Bureau. Specifically, Sprint Nextel achieved a penetration
rate of only 81.3% by the December 31, 2005 deadline and Nextel
Partners achieved a penetration rate of only 74.2% by the December 31,
2005 deadline.
5. On July 12, 2007, the Enforcement Bureau issued a letter of inquiry
requesting that Sprint Nextel provide certain supplemental information
related to its efforts to meet the E911 handset requirements.
Specifically, the letter requested that Sprint Nextel provide, among
other things, a timeline of all actions taken, both before and after
the December 31, 2005 deadline, to encourage customers to upgrade to
E911 compliant handsets, including any incentives and special
promotions, information concerning the costs and expenditures of these
actions and incentives, and information concerning the "take rate" or
effect these actions and incentives had on Sprint Nextel's overall
compliance rate. Sprint Nextel submitted its response on July 23,
2007.
III. Discussion
A. Failure to Comply with E911 Handset Penetration Requirement
6. The Commission has determined based on the record established in the
waiver proceedings that Sprint Nextel failed to comply with the
handset penetration deadline. Sprint Nextel does not dispute that it
achieved a penetration rate of only 81.3% by the December 31, 2005
deadline and that Nextel Partners achieved a penetration rate of only
74.2% by the December 31, 2005 deadline. Accordingly, we conclude that
Sprint Nextel apparently willfully and repeatedly failed to comply
with the 95% handset penetration requirement by the December 31, 2005
deadline in violation of Section 20.18(g)(1)(v) of the Rules.
A. Proposed Forfeiture
7. Under Section 503(b)(1)(B) of the Act, any person who is determined by
the Commission to have willfully or repeatedly failed to comply with
any provision of the Act or any rule, regulation, or order issued by
the Commission shall be liable to the United States for a forfeiture
penalty. To impose such a forfeiture penalty, the Commission must
issue a notice of apparent liability and the person against whom such
notice has been issued must have an opportunity to show, in writing,
why no such forfeiture penalty should be imposed. The Commission will
then issue a forfeiture if it finds by a preponderance of the evidence
that the person has violated the Act or a Commission rule. We conclude
under this standard that Sprint Nextel is apparently liable for
forfeiture for its apparent willful and repeated violation of Section
20.18(g)(1)(v) of the Rules.
8. Under Section 503(b)(2)(B) of the Act, we may assess a common carrier
a forfeiture of up to $130,000 for each violation, or for each day of
a continuing violation up to a maximum of $1,325,000 for a single act
or failure to act. In exercising such authority, we are required to
take into account "the nature, circumstances, extent, and gravity of
the violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require."
9. The Commission's Forfeiture Policy Statement and Section 1.80 of the
Rules do not establish a base forfeiture for violation of Section
20.18(g)(1)(v). Nevertheless, the Commission has stated that the
"omission of a specific rule violation from the list ... [establishing
base forfeiture amounts] should not signal that the Commission
considers any unlisted violation as nonexistent or unimportant. The
Commission expects, and it is each licensee's obligation, to know and
comply with all of the Commission's rules." Thus, the Commission
retains its discretion to issue forfeitures on a case-by-case basis,
and has assessed forfeiture liability, for rule violations
irrespective of whether corresponding base forfeiture amounts have
been established.
10. Having considered the statutory factors enumerated above, in
conjunction with the entire record in this proceeding, including the
supplemental information provided by Sprint Nextel, we conclude that a
substantial proposed forfeiture is warranted. First, we find that the
violations here are egregious. Violations of E911 requirements are
extremely serious, given the critical function these requirements
serve in promoting and safeguarding life and property. As the
Commission has previously stated, it is critical for all handset-based
carriers to have met the final implementation deadline of December 31,
2005 for 95% location-capable handset penetration in order to allow
all stakeholders (including carriers, technology vendors, public
safety entities, and consumers) to have greater certainty about when
Phase II would be implemented and ensure that Phase II would be fully
implemented as quickly as possible. Absent Phase II location data,
emergency call takers and responders must expend critical time and
resources questioning wireless 911 callers to determine their
location, searching for those callers when the callers cannot provide
this information, or both. In this regard, we take into account the
substantial percentage of noncompliance at the deadline (13.7% for
Sprint Nextel and 20.8% for Nextel Partners) and the significant
number of customers affected by Sprint Nextel's noncompliance. We
observe that Sprint Nextel had more than 51 million wireless customers
at the end of 2005.
11. Moreover, our finding of an egregious violation is further buttressed
by the length of time that carriers have been on notice of the final
handset penetration deadline -- since at least 1999 -- and the fact
that the Commission has repeatedly affirmed Sprint Nextel's obligation
to meet the handset penetration deadline. For example, in October
2001, the Commission extended the deadlines for Nextel and Nextel
Partners with respect to the sale and activation of location-capable
handsets, but specifically did not extend the December 31, 2005
deadline for achieving 95% penetration of location-capable handsets.
Further, in granting consent to the merger of Sprint and Nextel, the
Commission stated that it was "particularly concerned about the merged
entity's progress toward E911 compliance." It noted Nextel's assertion
that it "`anticipate[d] that Sprint Nextel [would] likely not achieve
the Commission's 95 percent A-GPS handset penetration requirement
until December 31, 2007,'" and deemed that result unacceptable. The
Commission "confirm[ed] [its] commitment to the E911 rules and
remind[ed] the Applicants that they, like all carriers, are obligated
to comply with [the] E911 rules, including the requirement that
carriers electing a handset-based E911 solution achieve 95 percent
penetration by the end of [2005]." The Commission further stated that
"[w]e will not hesitate to take enforcement action if this deadline is
not met."
12. We also believe that a substantial proposed forfeiture is warranted
based on the continuous and repeated nature of the violations. We note
that Sprint Nextel still has not achieved 95% handset penetration, 20
months after the December 31, 2005 deadline, and is the only Tier I
provider that is not in compliance. In this context, where every day
of a continuing violation has the potential of threatening the
delivery of critical, life-saving services, a 20-month delay in
compliance compels a significant proposed forfeiture.
13. Further, we take into account Sprint Nextel's size and ability to pay
a forfeiture in determining the appropriate forfeiture amount. Sprint
Nextel is a Tier I wireless service provider, with a nationwide
footprint serving 53.1 million subscribers as of the end of 2006.
Sprint Nextel generated more than $41 billion in revenues in 2006. As
the Commission made clear in the Forfeiture Policy Statement, large or
highly profitable communications entities, such as Sprint Nextel,
could expect forfeitures significantly higher than those reflected in
the base amounts. In view of Sprint Nextel's size and ability to pay,
we believe that a substantial proposed forfeiture is appropriate to
serve as an effective deterrent to future violations of the E911
requirements.
14. We recognize that Sprint Nextel identified a latent software defect
that affected the location capability of its handsets and that upon
discovery, took prompt and aggressive action to remedy the defect. It
is well established that "an assertion that a vendor, manufacturer, or
other entity was unable to supply compliant products will not excuse
noncompliance" with E911 requirements. On the other hand, a carrier's
"concrete and timely actions" taken with a vendor, manufacturer, or
other entity may be considered as possible mitigation factors in an
enforcement context. Toward that end, we acknowledge the substantial
efforts Sprint Nextel made to remedy the software problem, including
subscriber outreach and promotional initiatives, and find that
mitigation of the proposed forfeiture is warranted on this basis.
15. We also recognize that Sprint Nextel expected to reach 95% penetration
by December 31, 2005 among those customers served by the CDMA network
inherited from Sprint and but for Sprint's acquisition of Nextel, it
would have been only major handset-based carrier to have timely
achieved compliance with the December 31, 2005 deadline. We stated in
the Sprint Nextel Waiver Order that although this factor does not
excuse Sprint Nextel's non-compliance, it does merit consideration in
the enforcement proceeding to follow. We find that mitigation is
warranted on this basis.
16. On balance, however, we find that Sprint Nextel did not undertake the
level of commitment we would expect from a Tier I carrier. Despite the
aggressive efforts taken to address the software defect, we note that
Sprint Nextel was less aggressive when it came to its underlying
compliance obligations. We also note that Sprint Nextel spent less on
compliance efforts relative to their customer and revenue bases as
compared to the other companies before us. For these reasons, we find
that a substantial forfeiture is warranted.
17. Accordingly, based on the egregious, continuous and repeated nature of
the violations and Sprint Nextel's ability to pay a forfeiture, we
propose a forfeiture in the amount of $1,325,000 for Sprint Nextel's
willful and repeated failure to achieve 95% handset penetration among
its subscribers by December 31, 2005 in violation of Section
20.18(g)(1)(v) of the Rules.
18. Finally, because Sprint Nextel apparently has still not achieved 95%
handset penetration among its subscribers, we will continue to require
that Sprint Nextel comply with the reporting requirements that were
established in the Waiver Orders.
IV. ordering clauses
19. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Act, and Section 1.80 of the Rules, Sprint Nextel Corporation is
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
one million three hundred twenty five thousand dollars ($1,325,000)
for willful and repeated violation of Section 20.18(g)(1)(v) of the
Rules.
20. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
within thirty days of the release date of this Notice of Apparent
Liability for Forfeiture, Sprint Nextel Corporation SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
21. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank/LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
22. The response, if any, must be mailed to the Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
and must include the NAL/Acct. No. referenced in the caption.
23. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
24. Requests for payment of the full amount of the NAL under an
installment plan should be sent to: Associate Managing Director -
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554.
25. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to Laura H. Carter, Vice President,
Government Affairs, Sprint Nextel Corporation, 2001 Edmund Halley
Drive, Reston, VA 20191.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
STATEMENT OF
CHAIRMAN KEVIN J. MARTIN
Re: In the Matter of Alltel Corporation, Notice of Apparent Liability for
Forfeiture, EB-07-SE-008
Re: In the Matter of Sprint Nextel Corporation, Notice of Apparent
Liability for Forfeiture, EB-07-SE-006
Re: In the Matter of US Cellular Corporation, Notice of Apparent Liability
for Forfeiture, EB-07-SE-009
Ensuring that E911 service meets the needs of public safety and the
expectations of the American people is a top priority of mine and of the
Commission. I recognize that the public expects us to get these issues
right. One of my first actions when I became Chairman was to ensure that
all Americans could pick up the phone and dial 911 and connect to
emergency services whether they were using a wireline, wireless or
Internet phone. On the wireless side, Americans increasingly expect that
dialing 911 also means first responders can pinpoint a caller's location,
even when the caller is incapacitated or does not know where he or she is.
To this end, the FCC required all carriers to ensure that 95% of their
subscribers have handsets that are location capable by December 31, 2005.
Alltel, Sprint Nextel, and U.S. Cellular failed to meet this critical
deadline by a significant margin, despite the clear requirements of the
Commission and the needs of their consumers. While we recognize the
efforts undertaken by the carriers, and encourage the continued efforts of
all carriers to enhance these life-saving technologies and work with the
public safety community, the fines issued today are significant and
appropriate. Our actions today underscore the critical importance that 911
services play in the lives of the public. I continue to believe that one
of the Commission's highest obligations is facilitating the ability of the
public safety community to help those in need. Effective enforcement of
our E911 rules is a valuable and necessary tool in achieving this mission.
Sprint Nextel Corporation includes Nextel Partners, Inc. ("Nextel
Partners"). See Applications of Nextel Communications, Inc. and Sprint
Corporation for Consent to Transfer Control of Licenses and
Authorizations, Memorandum Opinion and Order, 20 FCC Rcd 13967 (2005)
("Sprint Nextel Merger Order"); Applications of Nextel Partners, Inc.,
Transferor, and Nextel WIP Corp. and Sprint Nextel Corporation,
Transferees, for Consent to Transfer Control of Licenses and
Authorizations, Memorandum Opinion and Order, 21 FCC Rcd 7358 (2006). The
parties consummated this transaction on June 27, 2006. See File No.
0002444650.
47 C.F.R. S: 20.18(g)(1)(v).
Id.
See 47 C.F.R. S: 20.18(e).
Network-based location solutions employ equipment and/or software added to
wireless carrier networks to calculate and report the location of handsets
dialing 911. These solutions do not require changes or special hardware or
software in wireless handsets. See 47 C.F.R. S: 20.3, Network-based
Location Technology.
Handset-based location solutions employ special location-determining
hardware and/or software in wireless handsets, often in addition to
network upgrades, to identify and report the location of handsets calling
911. See 47 C.F.R. S: 20.3, Location-Capable Handsets.
See 47 C.F.R. S: 20.18(f), (g)(2).
See 47 C.F.R. S: 20.18(j)(1).
See 47 C.F.R. S: 20.18(g)(1).
See 47 C.F.R. S: 20.18(g)(1)(v).
See Request for Waiver of Location-Capable Handset Penetration Deadline by
Sprint Nextel Corporation, Order, 22 FCC Rcd 400 (2007) ("Sprint Nextel
Waiver Order"), recon. pending; Request for Waiver of Location-Capable
Handset Penetration Deadline by Nextel Partners, Inc., Order, 22 FCC Rcd
416 (2007) ("Nextel Partners Waiver Order"), recon. pending. The
Commission addressed these waiver requests in separate decisions because
Sprint Nextel and Nextel Partners were separate entities as of the
relevant compliance deadline. Sprint Nextel Waiver Order, 22 FCC Rcd at
416, n. 1.
Sprint Nextel Waiver Order, 22 FCC Rcd at 410 P: 28; Nextel Partners
Waiver Order, 22 FCC Rcd at 426 P: 25.
Sprint Nextel Waiver Order, 22 FCC Rcd at 413-14 P:P: 35, 40; Nextel
Partners Waiver Order, 22 FCC Rcd at 428-29 P:P: 31, 36. The Commission
previously has placed carriers on notice that referrals may be made to the
Enforcement Bureau for failure to comply with an applicable Phase II
deadline, even when requests for relief are submitted in advance of
deadlines set forth in the Commission's Rules or orders. See Revision of
Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency
Calling Systems, Order, 18 FCC Rcd 21838, 21844 P: 12 (2003) ("A carrier
may seek a waiver in advance of a deadline in the Phase II rules or its
compliance plan. However, the carrier always becomes liable for possible
enforcement action if it fails to comply with an applicable Phase II
deadline. Referral to the Enforcement Bureau when such an apparent
violation is reported, or otherwise appears likely, is a normal and
familiar exercise of the Commission's authority and discretion"). Both
Sprint Nextel and Nextel Partners executed a Tolling Agreement on June 22,
2007. See Tolling Agreement between Sprint Nextel and the Enforcement
Bureau, Federal Communications Commission, dated June 22, 2007. The
Agreement tolls the one-year statute of limitations as it relates to the
facts and issues surrounding Nextel Partners.
Sprint Nextel Waiver Order, 22 FCC Rcd at 408 P: 22.
Nextel Partners Waiver Order, 22 FCC Rcd at 424 P: 19.
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Laura H. Carter, Vice President, Government
Affairs, Sprint Nextel Corporation (July 12, 2007).
Letter from Laura H. Carter, Vice President, Government Affairs, Sprint
Nextel Corporation to Kathryn S. Berthot, Chief, Spectrum Enforcement
Division, Enforcement Bureau (July 23, 2007) ("LOI Response").
See supra P: 4.
Section 312(f)(1) of the Act defines "willful" as "the conscious and
deliberate commission or omission of [any] act, irrespective of any intent
to violate" the law. 47 U.S.C. S: 312(f)(1). The legislative history of
Section 312(f)(1) of the Act clarifies that this definition of willful
applies to both Sections 312 and 503(b) of the Act, H.R. Rep. No. 97-765,
97th Cong. 2d Sess. 51 (1982), and the Commission has so interpreted the
term in the Section 503(b) context. See Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recon.
denied, 7 FCC Rcd 3454 (1992) ("Southern California").
Section 312(f)(2) of the Act, which also applies to forfeitures assessed
pursuant to Section 503(b) of the Act, provides that "[t]he term
`repeated,' ... means the commission or omission of such act more than
once or, if such commission or omission is continuous, for more than one
day." 47 U.S.C. S: 312(f)(2). See Callais Cablevision, Inc., Notice of
Apparent Liability for Forfeiture,16 FCC Rcd 1359, 1362 P: 9 (2001);
Southern California, 6 FCC Rcd at 4388.
We note that, while Nextel Partners' violation would have ceased when it
ceased to have a separate existence upon transfer of control to Sprint
Nextel, the termination of Nextel Partners' violation does not negate that
fact that a separate, continuing violation occurred. As the transferee of
control, Sprint Nextel assumes Nextel Partners' regulatory liabilities to
the Commission. Given that Sprint Nextel's acquisition of Nextel Partners
has been completed, we believe that a consolidated NAL that addresses the
separate and individual violations of both carriers is appropriate in the
enforcement context. See supra n. 1.
47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002).
47 U.S.C. S: 503(b)(2)(B). The Commission twice amended Section 1.80(b)(3)
of the Rules, 47 C.F.R. S: 1.80(b)(3), to increase the maximum forfeiture
amounts, in accordance with the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, 28 U.S.C. S:
2461. See Amendment of Section 1.80 of the Commission's Rules and
Adjustment of Forfeiture Maxima to Reflect Inflation, Order, 15 FCC Rcd
18221 (2000) (adjusting the maximum statutory amounts from
$100,000/$1,000,000 to $120,000/$1,200,000); Amendment of Section 1.80 of
the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) (adjusting the maximum statutory
amounts from $120,000/$1,200,000 to $130,000/$1,325,000); see also 47
C.F.R. S: 1.80(c).
47 U.S.C. S: 503(b)(2)(E). See also 47 C.F.R. S: 1.80(b)(4), Note to
paragraph (b)(4): Section II. Adjustment Criteria for Section 503
Forfeitures.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd
17087, 17115 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
12 FCC Rcd at 17099 P: 22.
Id.
See Callais Cablevision, Inc., Forfeiture Order, 17 FCC Rcd 22626, 22630
P:P: 19-20 (2002) (assessing an aggregate $133,000 forfeiture irrespective
of the absence of an established base forfeiture for violations of the
cable signal leakage standards); Midwest Television, Inc., 20 FCC Rcd 3959
(Enf. Bur. 2005) (assessing a $20,000 proposed forfeiture irrespective of
the absence of an established base forfeiture for failure to broadcast
emergency information accessible to hearing impaired viewers); A-O
Broadcasting Corp., 31 Communications Reg. (P&F) 411 P: 22 (2003),
forfeiture ordered, 20 FCC Rcd 756 (2005) (assessing a $28,000 forfeiture,
inter alia, irrespective of the absence of an established base forfeiture
for violations of radio frequency exposure limits).
Sprint Nextel requested confidential treatment of its July 23, 2007 LOI
Response. See Letter from Laura H. Carter, Vice President, Government
Affairs, Sprint Nextel Corporation, to Kathryn S. Berthot, Chief, Spectrum
Enforcement Division, Enforcement Bureau (July 23, 2007). Although we do
not rule on Sprint Nextel's request for confidentiality at this time, we
will accord confidential treatment of the LOI Response for purposes of
this NAL except where the information contained therein is otherwise
publicly available. See 47 C.F.R. S: 0.495(d).
See Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Second Memorandum Opinion and
Order, 14 FCC Rcd 20850, 20852 P: 2 (1999), clarified, 16 FCC Rcd 18982
(2001); see also Dobson Cellular Systems, Inc. and American Cellular
Corporation, 21 FCC Rcd 4684, 4707 P: 59 (2006), consent decree ordered,
22 FCC Rcd 7968 (2007); T-Mobile USA, Inc., Notice of Apparent Liability
for Forfeiture, 18 FCC Rcd 3501, 3504 P: 7 (2003); Sprint Spectrum LP
d/b/a Sprint PCS, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
19901, 19906 P: 12 (Enf. Bur. 2004), consent decree ordered, 20 FCC Rcd
12328 (Enf. Bur. 2005).
See Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems; Phase II Compliance Deadlines for
Non-Nationwide Carriers, Order to Stay, 17 FCC Rcd 14841, 14853 P: 38
(2002) ("Non-Nationwide Carriers Order").
Phase I E911 service provides a PSAP with data elements containing the
telephone number of the originator of the 911 call and the location of the
cell site or base station receiving the 911 call. See 47 C.F.R. S:
20.18(d). Thus, the actual location of the caller can be miles distant
from the location information provided to the PSAP, with consequent delay
in providing the caller with emergency services, assuming that the caller
actually can be located. Phase II service, by comparison, has a required
location accuracy of 100 meters for 67% of calls and 300 meters for 95% of
calls (for a network-based location solution) or 50 meters for 67% of
calls and 150 meters for 95% of calls (for a handset-based location
solution). See 47 C.F.R. S: 20.18(h)(1)-(2).
See Sprint Nextel Corporation 2005 Annual Report on Form 10-K (filed March
7, 2006) and Sprint Nextel Corporation 2006 Annual Report on Form 10-K
(filed March 1, 2007), www.sprint.com.
See Revision of the Commission's Rules to Ensure Compatibility with
Enhanced 911 Emergency Calling Systems, Third Report and Order, 14 FCC Rcd
17388, 17408 P: 42 (1999), modified, Revision of the Commission's Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling Systems, Fourth
Memorandum Opinion and Order, 15 FCC Rcd 17442, 17445 P: 36 (2000).
See Wireless E911 Phase II Implementation Plan of Nextel Communications,
Inc., Order, 16 FCC Rcd 18277, 18284 P: 20, 18285 P: 24, 18289 P: 37
(2001) ("Nextel Phase II Waiver Order")(finding that Nextel was still
subject to the same full deployment requirement as all other carriers,
i.e., that 95% of all customer handsets have location capability no later
than December 31, 2005, despite a delay in the initial deployment of these
handsets.).
Sprint Nextel Merger Order, 20 FCC Rcd at 14019-20 P: 144.
See id. at 14020 P: 144; see also Letter from Laura L. Holloway, Nextel
Communications, Inc., to Marlene H. Dortch, Secretary, Federal
Communications Commission, CC Docket No. 94-102, filed July 11, 2005, at 1
("Nextel has placed the Federal Communications Commission (`Commission')
on notice that it likely will not be able to comply with the 95%
benchmark, primarily due to the GPS software glitch that affected millions
of A-GPS-capable Nextel handsets last summer.").
Sprint Nextel Merger Order, 20 FCC Rcd at 14020 P: 144.
Id.
See Sprint Nextel Corporation E911 Quarterly Report, WT Docket Nos. 05-286
and 05-302 (filed August 1, 2007). Sprint Nextel indicates that, as of
June 30, 2007, its subscriber records indicate that the handset
penetration rate had reached 93.67%. Sprint further suggests that its
records actually may understate the actual handset penetration rate, which
may be as high as 94.79%. This figure includes combined handset numbers
for Sprint Nextel and Nextel Partners.
Tier I carriers are Commercial Mobile Radio Service providers with
nationwide footprints. See Non-Nationwide Carriers Order, 17 FCC Rcd at
14843 P: 7. In the Non-Nationwide Carriers Order, the Commission found
that there were six carriers with national footprints, including Nextel.
Sprint Nextel Corporation 2006 Annual Report on Form 10-K (filed March 1,
2007), www.sprint.com.
Id.
Specifically, the Commission stated:
[O]n the other end of the spectrum of potential violations, we recognize
that for large or highly profitable communication entities, the base
forfeiture amounts ... are generally low. In this regard, we are mindful
that, as Congress has stated, for a forfeiture to be an effective
deterrent against these entities, the forfeiture must be issued at a high
level .... For this reason, we caution all entities and individuals that,
independent from the uniform base forfeiture amounts ..., we intend to
take into account the subsequent violator's ability to pay in determining
the amount of a forfeiture to guarantee that forfeitures issued against
large or highly profitable entities are not considered merely an
affordable cost of doing business. Such large or highly profitable
entities should expect in this regard that the forfeiture amount set out
in a Notice of Apparent Liability against them may in many cases be above,
or even well above, the relevant base amount.
Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.
See Sprint Nextel Waiver Order, 22 FCC Rcd at 409-10, P:P: 26-28; Nextel
Partners Waiver Order, 22 FCC Rcd at 425-26, P:P: 23-25.
Order to Stay, 17 FCC Rcd at 14854 P: 37; Revision of the Commission's
Rules to Ensure Compatibility of Enhanced 911 Emergency Calling Systems,
Request for Waiver by Sprint Spectrum LP d/b/a Sprint PCS, 16 FCC Rcd
18330, 18340 P: 32 (2001); Revision of the Commission's Rules to Ensure
Compatibility of Enhanced 911 Emergency Calling Systems, Request for
Waiver by AT&T Wireless Services, 16 FCC Rcd 18253, 18261 P: 26 (2001).
Id.
Sprint Nextel Waiver Order, 22 FCC Rcd at 413, P: 33.
Id.
Sprint Nextel described its compliance efforts and its expenditures in its
July 23, 2007 LOI Response. See supra n. 31.
Sprint Nextel Waiver Order, 22 FCC Rcd at 412-13, P: 34; Nextel Partners
Waiver Order, 22 FCC Rcd at 428, P: 30.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission FCC 07-156
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Federal Communications Commission FCC 07-156